2014-04-18 / Front Page

Hundred-seat restaurant plan nixed

By Duke Harrington
Contributing Writer

CAPE ELIZABETH – The Cape Elizabeth Planning Board has, in the parlance of the restaurant industry, “86ed” a request by The Good Table restaurant to increase its seating capacity from 75 to 100 diners.

The owners of the Good Table, Lisa and Anthony Kostopulos, asked for the increase nine months ago, saying in a letter to the town council, “Since oftentimes between guests in seats and guests waiting on the porch for a table we have 100 people here already.

“We don’t feel this will impact the town and its desire to remain quaint,” wrote the Kostopuloses.

The council addressed the issue briefly at its Aug. 12 meeting, voting unanimously to refer it to the planning board for a recommendation, given that the change would require an amendment to the town’s zoning ordinance.

However, planning board members said Tuesday that the request only came about after it was discovered last summer that the Good Table was violating zoning rules in the town’s “Business A” district, which limits restaurants to 80 seats.

While four of the seven planning board members supported an increase to 100 seats during debate at an April 1 workshop, the mood shifted when Vice Chairman Liza Quinn reported on an April 10 visit to the popular restaurant, located at 527 Ocean House Road.

“I went to do a bit of research,” Quinn said. “I had dinner and I counted seats, discretely. I counted 104.

“There were not 104 people there,” Quinn said, “but I am sure as the day is long that if 104 people came in they would have sat all 104.”

Quinn said she then called Cape Elizabeth’s code enforcement officer, Ben McDougal, and asked for a copy of the notice of violation issued to the restaurant, only to discover that no such notice was ever given.

“The code enforcement officer went in to serve a violation in July of last year, but he did not write it up,” Quinn said. “A discussion was held instead about how they might cure the violation, and they’ve gone to the council and asked for a change in the ordinance.”

“I do not think this is the right way to run a town,” Quinn added. “I just find it upsetting that we are even considering making this change when a notice of violation was not written up and the ordinance is being flouted.

“This feels like ‘spot zoning’ – changing the zoning ordinance to benefit one interested party,” she said.

Town Planner Maureen O’Meara said not all visits by McDougal result in a written notice of violation. Often, she said, a resident or business owner will simply correct the violation.

“Obviously, this situation appears to be a little bit different,” she said.

The most recent version of Cape Elizabeth’s comprehensive plan refers to the town as a “small seaside community” and, based on that, recommended an 80-seat maximum capacity for restaurants in the BA zone. That change was codified in July 2009.

Cape has two BA zones, encompassing 10 properties on Ocean House Road between Davis Point and Golden Ridge Lanes, and all or part of nine lots on Shore Road, near its intersection with Preble Street. The approved site plan for The Good Table, approved when the business, founded in 1986, was rebuilt after a 2001 fire, authorizes 75 seats.

According to planning board Chairman Victoria Volent, the Good Table’s ordinance change request was put on the back burner while the board dealt with another complicated issue, in which it was asked to set the “normal high water mark” along the Cape Elizabeth coastline.

“That was a decision that I made that we work on only one very large item at a time,” Volent said Tuesday.

Planning board member Carol Anne Johnson said the Good Table should have been allowed to continue seating more than 80 guests while its ordinance change request was stuck in administrative limbo, in much the same way that courts will allow an action to continue until legal proceedings are concluded. However, other members, including Elaine Falender, found fault with that notion.

“It’s quite clear what the current requirement is,” she said. “It’s 80 seats, and any other restaurant in the district is held to 80 seats. They are quite clearly in violation of that requirement. All that would need to happen is a reconfiguration of the seating while this process is pending. Instead, one business in our town is getting an economic advantage from knowingly not complying with the ordinance.”

Several planning board members said changing the zoning ordinance would be unfair to Rudy’s of the Cape, located at 517 Ocean House Road, which is scheduled to re-open this summer following a lengthy reconstruction process.

“Rudy’s spent a lot of money on developing their site plan and they were under a lot of scrutiny by us and the abutters to be consistent with the code,” Quinn said. “I don’t think it’s fair, and I don’t think it says good things about Cape Elizabeth, to let a neighbor in the same district go on for almost a year now violating a very, very important part of the code.”

“I think we’re just inviting Rudy’s to set up an extra 20 tables,” Falender said. “My guess is they could probably do it out on their patio and we would have a hard time as a planning board complaining about that.

“We just told those people we want them to respect our ordinance,” she added. “I think we’re sending the wrong message to just sort of let it go (for The Good Table) and say, for anther six months (while the ordinance change process unfolds) we’re going to give you another summer season to violate our ordinance.

However, board member Josef Chalet steered his peers away from the question of an ongoing violation, given that the planning board has no enforcement power. Instead, he said, the board should focus solely on the change request.

“I don’t know that whether or not they are compliant at the moment really has bearing on our decision to go forward with this,” he said. “Had they been compliant all along, we still might conclude after discussion that 80 seats was the correct number, not 100.”

Planning board member Peter Curry called Good Table’s seating issue, “a summer problem,” suggesting the board should accommodate its request in the name of being “business friendly.”

“It’s not for us to start shaking out finger and say, ‘You bad folks, we’re going to punish you,” he said. “That’s Ben’s job. All we’ve been asked to do is say what is a good number for seating.”

“I’m not saying they’re bad people,” Quinn said. “I’m saying what kind of town do we want to live in? There’s a difference between being business friendly and doing business transparently, fairly, and by the book.”

“Clearly, 80 (seats) is too small, because if they can fill 104, then obviously there’s a requirement or a necessity or a desire in the town to have that sized restaurant,” said planning board member Henry Steinberg.

However, while that view seemed to mirror Curry’s, Steinberg then circled it back to the majority opinion on the board

“I am normally in favor of free enterprise,” he said, “but when we react to (someone saying) why bother with the code, we don’t have to be enforced, we can do what we like, I think we’re sending the wrong message.”

The board voted 6-1 Tuesday, with Curry dissenting, to hold a public hearing on the seating change request at its May 22 meeting, at which it will recommend that the maximum seating capacity at restaurants in the BA zones remain at 80. Following the public hearing, the planning board will send its advisement to the town council, which will likely pass it along to its three-person ordinance committee, although it could simply take the planning board’s pending advice and kill the request then and there.

Should the ordinance committee approve an increase to 100 seats, the full council would have to vote on the zoning amendment and, if approved, the Good Table would still need to go before the planning board for an amendment to its site plan, assuring that it has adequate parking and septic facilities to accommodate a 25- seat increase.

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